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HQ 966396

June 9, 2004

CLA-2 RR:CR:TE 966496 SG


TARIFF NO.: 5603.93.0090; 5603.92.0090

Port Director
U.S. Customs and Border Protection
#1 Pontilla Street
Room 214
San Juan, PR 00901

RE: Application for Further Review of Protest No. 4909-02-100078

Dear Sir:

This is in response to the Application for Further Review of Protest Number 4909-02-100078 that you forwarded to our office for review. The protest was timely filed by Pall Biomedical Inc., a subsidiary of Pall Corporation, against the liquidation of certain non-woven man-made material under subheading 3920.10.0000, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The protest covers five entries liquidated on July 5, 2002. As a result of a regulatory audit compliance assessment report concerning Pall Corporation, protestant received an internal advice ruling HQ 964255, dated August 27, 2002, advising that the proper classification for the subject merchandise was in subheading 5911.40.0000, HTSUSA, as textile articles for technical uses.

Protestant challenges the classification of the merchandise in subheading 5911, HTSUS, and maintains that HQ 964255 conflicts with previous decisions of Customs and Border Protection (CBP).

Review of the AFR is warranted pursuant to 19 CFR 174.24 which states in relevant part that an AFR will be granted when the decision against which the protest was filed (a) Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Additionally, 19 CFR §174.25(b)(3) provides, in pertinent part, that an application for further review shall contain a statement of any facts or additional legal
arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in §174.24 which justifies further review. Accordingly, the AFR is proper.


A description of the merchandise set out in HQ 964255 reads:

The imported product is a nonwoven man-made material for use in blood filtration. The spunbound nonwoven material is imported as piece goods and is manufactured of a melt blow polyester which is considered to be a staple fiber.

After importation the subject merchandise undergoes a process, known in the industry as "grafting," during which the fabric is exposed to a solution with monomers and solvents and exposed to gamma radiation with subsequent washing and drying. The product's ultimate use is for leukocyte (white blood cell) reduction in blood filtration systems.

Samples of the material as imported prior to treatment (sample A) and after grafting (sample B) were submitted. Analysis of the samples by the Customs and Border Protection Office of Laboratories and Scientific Services (CBP Lab) determined the following:

Sample 'A' weighs 72 grams per square meter and is composed of a layer of transparent looking nonwoven polyester and a layer of white fine polyester microfibers.

Sample 'B' weighs 55.1 grams per square meter and is composed of a layer of fine polyester microfibers.
these white layers in both Sample 'A' and Sample 'B' are further composed of very fine layers which can be easily separatedthe orientation and arrangements of polyester fibers in all layers, in both sample are identical.

In a telephone conversation with a member of my staff, protestant advised that the filament polyester substrate is removed and discarded prior to use as a blood filter. In addition, it appears that there will be some variation in the weight of the imported material.

The protestant maintains that the material at issue is substantially similar in all material respects to that classified in HQ 959276, dated January 30, 1998, under heading

5603, HTSUS. It is contended that in the condition as imported, the material is not a straining cloth as it would disintegrate if used as a filtration device under the pressure of most aqueous solutions. It is also contended that the merchandise as imported is not an incomplete or unfinished article under GRI 2(a) because it does not have the essential character of a textile product for technical uses. It is protestants' view that it is properly classifiable in heading 5603, HTSUS, as a nonwoven.


Is the article under consideration classifiable under heading 5603, HTSUSA, as a nonwoven, or under heading 5911, HTSUSA, as a textile product for technical uses?


Classification of goods under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes ("EN") represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The two headings under consideration herein are heading 5603, HTSUSA, which provides for, nonwovens, whether or not impregnated, coated, covered or laminated; and heading 5911, HTSUSA, which provides for textile products and articles, for technical uses, specified in note 7 to Chapter 59.


Legal Note 3 to chapter 56, HTSUSA, states:

Headings 5602 and 5603 cover respectively felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular).

Heading 5603 also includes nonwovens in which plastics or rubber forms the bonding substance.

Headings 5602 and 5603 do not, however, cover:

(a) Felt impregnated, coated, covered or laminated with plastics or rubber, containing 50 percent or less by weight of textile material or felt completely embedded in plastics or rubber (chapter 39 or 40);

(b) Nonwovens, either completely embedded in plastics or rubber, or entirely coated or covered on both sides with such materials, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39 or 40); or

(c) Plates, sheets or strip of cellular plastics or cellular rubber combined with felt or nonwovens, where the textile material is present merely for reinforcing purposes (chapter 39 or 40).

The EN to heading 5603, HTSUSA, state in pertinent part:

Except where they are covered more specifically by other headings in the Nomenclature, the heading covers nonwovens in the piece, cut to length or simply cut to rectangular (including square) shape from larger pieces without other working, whether or not presented folded or put up in packings (e.g., for retail sale). These include: facing webs (overlay) for incorporation in laminated plastics; top-sheets for the manufacture of disposable baby napkins (diapers) or sanitary towels; fabrics for the manufacture of protective clothing or garment linings; sheets for filtering liquids or air, for use as stuffing materials, for sound insulation, for filtration or separation in road building or other civil engineering works; substrates for manufacturing bituminous roofing fabrics; primary or secondary backing for tufted carpets, etc.; handkerchiefs, bed linen, table linen, etc.

The EN to heading 5603, HTSUSA, further state that nonwovens can be produced in various ways and production can be conveniently divided into the three stages: web formation, bonding and finishing.

Additionally, the EN for heading 5603 states:

This heading also excludes:

(ij) Nonwovens for technical uses, of heading 5911.


Heading 5911, HTSUSA, provides for textile products and articles for technical uses so long as they are specified in Legal Note 7 to Chapter 59, HTSUSA. Legal Note 7 to Chapter 59 reads:

Heading 5911 applies to the following goods, which do not fall in any other heading of section XI:

(a) Textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of headings 5908 to 5910), the following only:

(i) Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams);

(ii) Bolting cloth;

(iii) Straining cloth of a kind used in oil presses or the like, of textile material or of human hair;

(iv) Flat woven textile fabrics with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes;

(v) Textile fabric reinforced with metal, of a kind used for technical purposes;

(vi) Cords, braids and the like, whether or not coated, impregnated or reinforced with metal, of a kind used in industry as packing or lubricating materials;

(b) Textile articles (other than those of headings 5908 to 5910) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts).

Although the term "for technical uses" is not defined in the section or chapter notes, the ENs to heading 5911, HTSUSA, state that "textile products and articles of this heading present particular characteristics which identify them as being for use in various types of machinery, apparatus, equipment or instruments or as tools or parts of tools."

However, the ENs to heading 5911 do provide descriptions of various types of textile articles and products used for specific technical purposes. The EN to heading 5911, HTSUSA, describe "straining cloths" as:

(e.g., woven filter fabrics and needled filter fabrics), whether or not impregnated, of a kind used in oil presses or for similar filtering purposes (e.g., in sugar refineries or breweries) and for gas cleaning or similar technical applications in industrial dust collecting systems. The heading includes oil filtering cloth, certain thick heavy fabrics of wool or of other animal hair, and certain unbleached fabrics of synthetic fibres (e.g., nylon) thinner than the foregoing but of a close weave and having a characteristic rigidity. It also includes similar straining cloth of human hair.

The language in the tariff schedule qualifies the types of straining cloths classifiable in this subheading as those "of a kind used in oil presses or the like." However, a careful reading of the language used in subheading 5911.40, HTSUSA, reveals that there is no requirement that the straining cloths in this provision be used in oil presses. The term "or the like" indicates that the drafters of the tariff schedule have included in their definition of "straining cloth" a much broader range of articles than those that are merely used in oil presses. The ENs to heading 5911, HTSUSA, specifically refer to filter fabrics used for filtering purposes including gas cleaning and dust collecting. The subject merchandise is therefore covered by the ENs to heading 5911, HTSUSA. See, GKD-USA, Inc. v. United States, 20 C.I.T. 749; 931 F. Supp. 875 (1996, Ct. Intl. Trade), in which the issue was whether polyester filter belting imported in material lengths was precluded from classification under heading 5911 merely because it was not used in oil presses. The Court determined that "straining cloth" is generally referred to as "filter cloth", and that the term "straining cloth" was intended to have a broad meaning and could apply to any fabric used as a medium for filtration. The Court held that the imported polyester filter belting was properly classifiable in subheading 5911.40, HTSUS.

Based on the established precedent provided by the Court of International Trade and prior CBP rulings, as well as the ENs, it appears that nonwoven material used in blood filtration is a straining cloth under the EN to heading 5911.

Protestant contends that the polyester fabric at issue here cannot be classified in heading 5911 because, in its imported condition, it is incapable of technical use and is not one of the materials provided for in Note 7 to Chapter 59. It is further asserted that in its imported condition, the imported product would disintegrate under the pressure of most aqueous solutions passing through it and is therefore unsuitable for use as a straining cloth. After importation, the product undergoes a "grafting" process which is claimed to create an entirely new product with a different chemical structure which is suitable for straining. Thus it is argued that in the condition as imported the material is not a textile product for technical uses.

We must therefore determine whether the product in question is, in effect, an unfinished filter or straining cloth in its condition as imported and is, therefore, classifiable as such under the tenets of GRI 2(a). That rule reads in part that "any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article." In this case, samples of the merchandise in its condition as imported prior to treatment (ungrafted) and after importation and treatment (grafting) have been analyzed by the CBP Lab. When tested for water penetration, no water filtered through (drained) the ungrafted sample, while the grafted sample had complete filtration of water. Without the further processing (grafting) done after importation, the material does not have the essential character of the "complete or finished article"--that is, the ability to strain. It therefore does not have the essential character of a straining cloth under Note 7 to Chapter 59. Since the merchandise before us is a not straining cloth, nor unfinished straining cloth, it is not a textile product for technical use within the meaning of heading 5911. Therefore it is not classifiable in heading 5911, and falls within heading 5603. See, Filmtec Corporation v. United States, slip op 03-153 (United States Court of International Trade, decided November 25, 2003) in which a nonwoven textile fabric sheet was imported in rolls. After importation the fabric is coated to produce a membrane which will be used as a filter medium. Both parties agreed that in its imported condition the fabric could not function as a filter medium. The Court held that because the fabric does not have the essential character of the finished article-the ability to strain salt from water, it could not fall within heading 5911, HTSUS.

Accordingly, we agree that the merchandise in its imported condition is classifiable under heading 5603 under a GRI 1 analysis, and that HQ 964255 should be revoked.

As we stated above, the material imported prior to treatment is composed of a layer of transparent looking nonwoven polyester which appears to be of filament fiber and a layer of white fine polyester microfibers which are staple fibers. GRI 2(b) mandates that classification of goods consisting of more than one material shall be determined according to the principles of GRI 3. GRI 3(a) states that the heading which provides the most specific description is to be preferred to a heading which provides a more general description. However, when two headings each refer to only a part of the materials in a composite good, those headings are to be regarded as equally specific. EN V to Rule 3(a).

GRI 3(b) provides that composite goods consisting of different materials are to be classified as if they consisted of the material which gives them their "essential character." Thus, the question is whether the fine polyester microfibers or the nonwoven filament polyester gives the filter medium its essential character. Essential character may be determined by the nature of the material, its bulk, quantity, weight, value or by the role of a material in relation to the use of the goods. EN VII to Rule 3(b). The fine polyester microfiber layer is thicker than the filament polyester layer. In
addition, the nonwoven filament polyester layer is removed and discarded prior to use. Accordingly, it is the fine polyester microfibers, which are staple fibers, which gives the nonwoven material its essential character. We find that the sample as imported is classified under either subheading 5603.92, HTSUS, or subheading 5603.93, HTSUS, depending on its weight, as other, nonwovens, whether or not impregnated, coated, covered, or laminated.


Depending on its weight, the merchandise described above is classifiable under subheading 5603.92.0090, HTSUSA, which provides for "Nonwovens, whether or not impregnated, coated, covered or laminated: Other: Weighing more than 25 g/m2 but not more than 70 g/m2: Other." If over 70 g/m2, it is classifiable under subheading 5603.93.0090, HTSUSA, which provides for "Nonwovens, whether or not impregnated, coated, covered or laminated: Other: Weighing more than 70 g/m2 but not more than 150 g/m2: Other." The general column one duty rate is free. The applicable textile category is 223 for goods classified in either subheading.

The protest should be ALLOWED.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp.18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. No later than sixty days from the date of this decision, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cpb.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon, Director

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